Machariah & another v Noble Star Academy & another (Environment and Land Miscellaneous Case E061 of 2025) [2025] KEELC 5964 (KLR) (29 August 2025) (Ruling)
Neutral citation:
[2025] KEELC 5964 (KLR)
Republic of Kenya
Environment and Land Miscellaneous Case E061 of 2025
CG Mbogo, J
August 29, 2025
Between
Josiah Machariah
1st Applicant
Landan Mbote Huthu
2nd Applicant
and
Noble Star Academy
1st Respondent
Maurice Ingoi
2nd Respondent
Ruling
1.Before this court is the notice of motion dated 20th March, 2025 filed by the applicants and it is expressed to be brought under Section 3 and 3A of the Civil Procedure Act and Sections 9(1) and (2) of the Auctioneer Rules seeking the following orders:-1.Spent.2.That this honourable court be pleased to issue an Eviction Order against the respondents, directing them to vacate Plot No. 68 Komarock Shopping Center forthwith.3.That in default of compliance by the respondents, the Officer Commanding Kayole Police Station do provide assistance in enforcing the eviction orders.4.That, the costs of this application be in the cause.
2.The application is premised on the grounds on its face. It is further supported by the affidavit of the 1st applicant sworn on even date. The applicants deposed that the 2nd respondent sought to file an appeal out of time and their application was dismissed. He deposed that they sought for lifting of the stay orders which was granted through a ruling delivered on 23rd January, 2025 and that despite the orders, the respondents continue to occupy the suit property unlawfully. Further, that they have served them with the notice to vacate, and it is necessary for this court to issue eviction orders and direct the OCS Kayole Police Station to assist in executing the eviction.
3.Julius Njoroge, the director of the 1st respondent filed his replying affidavit supposedly sworn on 25th April, 2025 in opposition to the application. He deposed that upon conducting due diligence, he entered into a sale agreement with the 2nd respondent for the sale and purchase of the suit property. That as from 4th March, 2020, he began construction of a school, and in January, 2025, they opened their school to learners until March, 2025 when he was served with the instant application. He deposed that upon further enquiry, he learnt that the suit had been heard and he was condemned unheard.
4.The 1st respondent deposed that he is not a servant or agent of the 2nd respondent, and that the orders that were issued were directed towards the 2nd respondent, and it does not apply to him. He urged the court to stay these proceedings pending the outcome of his application in ELC No. 618 of 2025.
5.The 1st applicant filed his supplementary affidavit in response thereto sworn on 9th May, 2025. The 1st applicant deposed that the 1st respondent attempts to distance himself yet his involvement with the suit property began during the pendency of the suit. Further, that he claims the court’s decision does not affect him, yet he has no ownership documents. With reference to the application seeking stay of proceedings, he deposed that the same has not been served upon him which is a delay tactic. He maintained that the application seeks eviction of the 1st respondent who is unlawfully occupying the suit property.
6.The application was canvassed by way of written submissions. The applicants filed their written submissions dated 15th May, 2025 where they raised three issues for determination as follows:-a.Whether the respondents have any lawful right or interest in plot no. 68 Komarock Shopping Centre.b.Whether the continued occupation of the property by the respondents is unlawful.c.Whether the applicants are entitled to eviction orders.
7.On all the three issues, the applicants submitted that the respondents have no lawful claim on the suit property, and that the 1st respondent had notice of the litigation and undertook development at his own risk. Further, they submitted that the principle of finality must be respected, and that the continued unlawful occupation of the suit property violates their rights as they have a final judgment and decree. The applicants relied on the cases of E.T v Attorney General & Another [2012] eKLR and Kiptum v Birir & Another (Civil Appeal 66 of 2020) [2023] KECA 482 (KLR).
8.The 1st respondent filed his written submissions dated 13th June, 2025 where he raised four issues for determination as listed below:-a.Whether the 1st respondent has capacity to sue and be sued in the current form.b.Whether there was proper notice of eviction served upon the 1st respondent.c.Whether the current application has any merit.d.Who bears the cost of this application.
9.On the first issue, the 1st respondent submitted that suing the business without the owner in a sole proprietorship makes the entire application incompetent. Reliance was placed in the cases of Isaac Otieno Oduor v Mpaka holding Ltd [2019] eKLR, and Juliana Akinyi Owino v Kiarie Shoe Stores [2014] eKLR. On the second and third issues, the 1st respondent submitted that the notice purported to have been served upon the 1st respondent falls short of the requirement of Section 152E of the Land Act, and there is no proof that the deputy county commissioner and the officer commanding police division of the area were served. He relied on the case of Opande v Opondo (Environment and Land Miscellaneous Application 16 of 2023) [2024] KEELC 1702 (KLR)(4 April 2024)(Ruling). In conclusion, the 1st respondent deposed that the application ought to be dismissed with costs.
10.Before I delve further, there is need to point out a fundamental error as committed by the 1st respondent. He filed the replying affidavit sworn on 25th April, 2025 in opposition to the application. The same is stamped as received by the same firm that has drawn it. The affidavit has not been attested to by an advocate who is a commissioner for oaths, and it thus fails the test for admission as a document forming part of the pleadings in this application. The replying affidavit is hereby struck out.
11.With the above in mind, it is not difficult to find that the application is unopposed. However, it is necessary for the court to ascertain that which forms the issue for determination; whether the application is merited to warrant eviction orders.
12.Pursuant to the judgment delivered on 9th June, 2023 which was found in favour of the applicants, the court granted the following orders:-a.The defendants are the legal joint owners of Plot No. 68 Komarock Shopping Centre.b.A permanent injunction is hereby issued restraining the plaintiff either by himself, his servants, employees and/or agents from interfering with the defendants’ possession, title and interest in Plot No. 68 Komarock Shopping Centre.c.The plaintiff shall forthwith pay the defendants the sum of Kshs.690,170/- being the balance of the consideration for the contract between them for the services offered to Total Kenya Limited.d.Interest on (c) above from the date of this judgment at court rates until payment is made in full.e.The defendants are awarded the costs of the suit.
13.This judgment culminated from litigation conducted in ELC Case No. 648 of 2015 which was between the 2nd respondent and the applicants. The 1st respondent was not a party in this suit, and therefore did not participate in the proceedings. Secondly and as can be seen from the above, the court did not grant the orders of eviction and this prayer has been sought in the instant application to enable the applicants realize the judgment. While it is not disputed that the applicants are holders of a valid judgment, their procedure in attempting to execute eviction is wanting.
14.Section 152E of the Land Act, Cap 280 provides as follows:-
15.In the case of Atik Mohamed Omar Atik & 3 others v Joseph Katana & Another (2019) eKLR, it was held as follows:-
16.The applicants herein allege that they served the notice of eviction dated 25th February, 2025 and that the respondents have refused to vacate thus necessitating seeking these orders. However, and as it is clear, the procedure followed by the applicants falls short of all the requirements stipulated under Section 152E of the Land Act. It follows therefore that this court cannot issue the said orders. As earlier stated, the 1st respondent’s replying affidavit dated 25th April, 2025 is hereby struck out. The notice of motion dated 20th March, 2025 has no merit and it is dismissed with no orders as to costs.Orders accordingly.
DATED, SIGNED & DELIVERED VIRTUALLY THIS 29TH DAY OF AUGUST, 2025.HON. MBOGO C.G.JUDGE29/08/2025.In the presence of:Mr. Benson Agunga - Court assistantNo appearance for the ApplicantsNo appearance for the Respondents